9911796707
TMI Blog2021 (10) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... to take assistance from the Police Station concerned in this regard for the implementation of the Order on the part of the Respondent. It is seen that the movable assets, which are kept in the old premise at Cathedral Road, Chennai, are still in the custody of the Ms. Sundaravel T, the Respondent herein and that the Respondent refuses the Liquidator to value the said assets. Further, it is also pertinent to note that the Respondent had filed claims in Form-C before the liquidator for a sum of 27,21,744/- by attaching the lease agreement and rent working in order to substantiate the claim. At this juncture, it is pertinent to point out that once the creditor had submitted the claim in Form-C, the Creditor cannot hold back the movable assets of Corporate Debtor as a security for his claim, which goes against the principles of IBC, 2016. Ultimately, the said moveable assets of the Corporate Debtor would come within the purview of Liquidation Estate and the Respondent is in possession of the same and not willing to hand over the said moveable assets to the Liquidator. The Respondent is directed to hand over the moveable assets of the Corporate Debtor - application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... so points out the list of assets which has been held by the Respondent landlord as given in typed set (Page No. 26) filed along with the Application. Ld. Liquidator appraises this Tribunal that this is an Application seeking for the following reliefs as given in Paragraph no. 8 of the said Application. i. to pass an appropriate order directing the Respondent, who is in possession of the movable properties of the CD, as the erstwhile landlord of the CD's old office, to cooperate with the Company Liquidator, in collection of information about the movable assets which is in their physical possession and custody, so as to enable him to sell them in accordance with law; ii. to permit the Company Liquidator to sell the movable assets of the CD as per the lists given the Minutes of the 1st CoC meeting dated 25.04.2019, by private sale; and iii. to pass any other order or direction or grant any other relief in the circumstances of the case and thus render justice. Prior to any Order that can be passed in this Application, it is to be noted that the Liquidator is required to take possession of the assets and then value the same in accordance with the provisions of IBC and then o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out that the Hon'ble NCLAT in the matter of Deepakk Kumar, Director of M/s. Sovereign Infrastructure & Developers Ltd. -Vs- Phoenix ARC Pvt. Ltd. (2020 SCC Online NCLAT 648) through Justice Venugopal M had held as follows; 16. It is to be pointed out that the power to 'Review' is not an 'inherent power' and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to 'review' is a creation of statute. Indeed, a 'Review Jurisdiction' cannot be pressed into service as an 'Appellate Jurisdiction'. Moreover, the 'Power of Review' is not to be confused with an Appellate power. A 'review' cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier. 23. A mere perusal of the 'NCLAT' Rules, 2016 unerringly point out that there is no express provision for 'Review' and further that the Review Applicant/Appellant cannot seek the aid of Rule 11 of the 'NCLAT' Rules, 2016 which speaks of inherent powers. Also, that the Review Applicant cannot seek umbrage under section 420(2) of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the receipt of claim was 09.04.2019 in accordance with chapter IV of the IBC, 2016. 9. It was submitted that the 1st Meeting of the CoC was held on 25.04.2019, the Applicant herein was appointed as the Resolution Professional by the CoC. It was submitted that the Second CoC meeting was held on 19.07.2019 and in the said CoC meeting, it was resolved to go for early liquidation of the Corporate Debtor in view of the following factors:- i. The Company is not in business. There is no revenue, no employees. ii. It has no premises to operate from iii. It has virtually no assets excepting a few pieces of furniture and office equipment. iv. It has been out of business for a considerable period of time and as such the brand has no recall value. v. On the other hand, it has liability of nearly ₹ 3 crore for which claims have been submitted. According to the Directors of the Suspended Board, it has claims of another 93 lakh due to other Financial Creditors for which there has been no claims so far. 10. It was submitted that considering the above factors, the Committee of Creditors had unanimously resolved to liquidate the Corporate Debtor and accordingly the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CoC is constituted, the IRP has miserably failed to furnish the information and assess details of the Corporate Debtor which is mandatory under Section 21(9) of the IBC, 2016. It was further submitted that in the CoC meeting there was no discussion about the submission of the Resolution Plan and its approval for liquidation and in the said CoC meeting there is no discussion or no agenda with respect to the various cases initiated by the Financial Creditors for collecting the dues. Furthermore, when the stakeholders meeting has been constituted wherein there is no representation by the Applicant, on whose instance the CIRP in relation to the Corporate Debtor was triggered which goes on to show the record of collusion. 15. It was submitted by the Respondent that the present application filed by the IRP under Section 33(2) read with Section 60(5) of the IBC is not maintainable. It was further submitted that the IRP has not submitted any resolution plan on the basis of the information received from the Corporate Debtor and the decision taken and approved by the CoC had resulted in Liquidation of the Corporate Debtor. Hence, it was submitted that the present Application is not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors. (3) Subject to sub-section (4), the liquidation estate shall comprise all liquidation estate assets which shall include the following:- (a) any assets over which the corporate debtor has ownership rights, including all rights and interests therein as evidenced in the balance sheet of the corporate debtor or an information utility or records in the registry or any depository recording securities of the corporate debtor or by any other means as may be specified by the Board, including shares held in any subsidiary of the corporate debtor; (b) assets that may or may not be in possession of the corporate debtor including but not limited to encumbered assets; (c) tangible assets, whether movable or immovable; (d) intangible assets including but not limited to intellectual property, securities (including shares held in a subsidiary of the corporate debtor) and financial instruments, insurance policies, contractual rights; (e) assets subject to the determination of ownership by the court or authority; (f) any assets or their value recovered through proceedings for avoidance of transactions in accordance with this Chapter; (g) any asset of the corporate debtor in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
